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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
TARLOK SINGH CHAUHAN, J.
Ram Lal & Ors – Appellant
Versus
Jethu Ram & Ors – Respondent
CMP(M) No. 2061 of 2019 with Review Petition No. 22 of 2021
Decided On : 31-03-2021
Code of Civil Procedure, 1908 – Order XXII, Rule 4 – Nullity on account of failure – Petitioners have sought review of judgment passed in RSA solely on ground that judgment so passed is a nullity on account of failure of appellant to bring on record legal heirs of deceased defendant son of Sewak Ram, who was arrayed as respondent No. 7(a) in RSA – It is vehemently contended by Shri Sudhir Thakur, Senior Advocate duly assisted by Shri Karun Negi, Advocate, that it is more than settled that a decree passed in favour of a dead person is nullity in eyes of law – Held, Commission had incorporated the relaxation of Order XXII, Rule 4 CPC in respect of local amendments made by the High Courts of Calcutta, Madras, Orissa, in respect of a defendant, who has failed to appear and contest the suit – However, the amendment that followed the 54th Law Commission Report of 1973 substantially introduced Order XXII Rule 4 (4) to the CPC vide Section 73(i) of Act 104 of 1976 – It is noteworthy that in the original Bill, the provision of Order XXII Rule 4(4) was not included – Entire discussion is still academic in nature as it is more than settled that if the Court is satisfied that the estate of the deceased is adequately represented meaning thereby the interests of the deceased party are properly represented before the Court, there can be no abatement – There is no error apparent on the face of the record as the legal representatives of Dhani Ram son of Shri Sewak Ram were not required to be brought on record as he was only representing the estate of Sewak Ram, the original defendant, who had not chosen to contest the suit by filing written statement and his estate otherwise was adequately represented by his daughter Pushpa Devi – There is no merit in this petition and the same is accordingly dismissed – Applications Disposed of.
JUDGMENT :
TARLOK SINGH CHAUHAN, J.
1. By medium of this application, the applicants have sought condonation of 56 days delay in filing of the review petition. A perusal of paragraphs 2 and 3 of the application disclose sufficient cause which prevented the applicants from filing the appeal within the prescribed period of limitation. Accordingly, the aforesaid delay is condoned. The application stands disposed of. Review Petition be registered.
Review Petition No. 22 of 2021
2. By medium of this petition, the petitioners have sought review of judgment dated 22.08.2019 passed in RSA No. 38 of 2007 solely on the ground that the judgment so passed is a nullity on account of failure of the appellant to bring on record the legal heirs of deceased defendant Dhani Ram son of Sewak Ram, who was arrayed as respondent No. 7(a) in RSA No. 38 of 2007.
3. It is vehemently contended by Shri Sudhir Thakur, learned Senior Advocate duly assisted by Shri Karun Negi, Advocate, that it is more than settled that a decree passed in favour of a dead person is nullity in the eyes of law.
4. On the other hand, Shri Ramakant Sharma, learned Senior Advocate duly assisted by Shri Basant Thakur, Advocate submits that as a matter of fact Dhani Ram was not the original party and it was his father Sewak Ram who was party to the suit. Dhani Ram son of Sewak Ram and Pushpa Devi daughter of Sewak Ram had been impleaded as party-respondents after the death of Sewak Ram. It is more than settled that the object of bringing on record the legal representatives of deceased defendant on record under Order XXII Rule 4, is to have the estate of the deceased represented in the suit, which in the instant case is sufficiently represented by other legal representative i.e. Pushpa Devi. It is further contented that since Sewak Ram did not contest the suit by filing a written statement, then his name ought to have been deleted or is deemed to be deleted under the provisions of Order XXII Rule 4 (4) CPC. I have heard, learned counsel for the parties and have gone through the records of the case.
5. It is apposite to reproduce the provisions of Order XXII, Rule 4 (4) of the Code of Civil Procedure, which reads as under:-
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.”
6. Order XXII, Rule 4 (4) supra postulates that when one of two or more defendants in a suit dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. The object of bringing the legal representative of the deceased defendant on record under Order XXII Rule 4 is to have the estate of the deceased represented in the suit. If despite being receipt of information of the death of one of the defendants, the plaintiff omits to bring his legal representative on record in the manner prescribed by law, the suit would abate as against the deceased defendant. This is what sub-rule (3) of Rule 4 ordains.
7. Sub-rule (4) was inserted in Rule 4 by the Code of Civil Procedure (Amendment) Act, 1976 and conferred discretionary power on the Court to exempt a plaintiff from bringing the legal representative of a deceased defendant on record, who has either not filed written statement or having filed it, has abstained from contesting the suit by his non-appearance. Once exemption is granted, the judgment in the suit may be pronounced against all the defendants including the decease
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